]]>When a consumer trade association “speaks” about the health effects of a product, is its speech on an issue of public interest, and thus within the scope of the DC anti-SLAPP statute, or is it in furtherance of the association’s private or commercial interests, falling outside the statue’s scope? A case pending in DC Superior Court could answer this interesting question.

Earlier this year, Denise Simpson filed suit against a manufacturer and suppliers of talc, alleging that she developed ovarian cancer by using talcum powder. Simpson also sued the Personal Care Products Council, alleging that, in a former incarnation, it hired scientists to perform research regarding the safety of talc, and submitted information to governmental agencies about talc’s safety. The complaint alleges that the studies were “biased” and were part of a campaign to “prevent the regulation of talc and to mislead the consuming public about the true hazards of talc.” The complaint asserts three causes of action against PCPC: negligence, fraud and civil conspiracy.

In May 2016, PCPC filed a special motion to dismiss under the DC anti-SLAPP statute. In its brief, PCPC argued that the suit arose from an act in furtherance of the right of advocacy because its alleged conduct included: (a) submitting materials to governmental agencies in response to issues under their consideration; (b) releasing information regarding the safety of talc to the public; and (c) petitioning the government and communicating with the public about the safety of talc.

(Recall that “act in furtherance of the right of advocacy on issues of public interest” is defined to include an oral or written statement made (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or (ii) In a place open to the public or a public forum in connection with an issue of public interest; or (B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest).

PCPC further argued that the claims against it arose from speech on an “issue of public interest,” which is defined to mean “an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place,” because they arose from speech about a product in the marketplace and its safety or health.

PCPC’s brief acknowledged that the DC anti-SLAPP statute excluded claims “brought against a person primarily engaged in the business of selling or leasing goods or services,” but argued that, because PCPC did not sell or lease products, this provision was inapplicable. PCPC argued that the Court should dismiss Simpson’s complaint because she could not carry her “heavy burden” of establishing a likelihood of success on the merits of her fraud, negligence and conspiracy claims.

Simpson’s opposition primarily argued that the DC anti-SLAPP statute was inapplicable because PCPC’s “speech” was made in furtherance of “the private, commercial interests of itself and its members,” and not on issues of public interest. Simpson noted that the statute’s definitional section stated that “[t]he term ‘issue of public interest’ shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.”

According to Simpson, the Act was inapplicable because, “[r]ather than advocating on issues of public interest, PCPC advocated with its private interests and the commercial interests of its members as its primary motivators. . .”. Simpson also argued that PCPC’s speech did not fit the typical SLAPP pattern, because it did not arise from “grassroots activism,” and that, in any event, she was entitled to discovery.

(On the “grassroots activism” point, the DC Court of Appeals essentially rejected this argument in Burke II, holding that the statute did not only apply to “classic” or “typical” SLAPP suits, but instead applied “to lawsuits which the D.C. Council has deemed to be SLAPPS.” As for the request for discovery, the statute requires a party to show that “targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome.” Simpson’s opposition does not make this showing).

PCPC’s reply disputes Simpson’s principal assertion that a commercial trade association’s speech is, essentially, always about private or commercial interests, and can never be about an issue of public interest. According to PCPC, its speech here was quintessentially about an issue of public interest because PCPC specifically responded to government inquiries about talc or submitted materials about talc to the government. PCPC further argues that, as a non-profit trade association, it has no commercial interest to protect. Finally, argues PCPC, the commercial interests of its members cannot be imputed to PCPC’s speech:

Even if its actions served some of the interests of a minority of its membership, that is insufficient to place PCPC’s advocacy in the realm of “private interests.” Notably, Plaintiff does not allege that PCPC made any representations regarding a particular product. And, the Act precludes only those in the business of selling goods and services from invoking its protections. If the D.C. legislature wanted, it could have exempted trade organizations or any entity tangentially related to a commercial product. It did not.

On the critical question of whether PCPC’s “speech” to the government was about an issue of public interest, or in the trade association’s private or commercial interests, PCPC’s reply brief appears to miss a critical point: the first prong of the “act in furtherance of the right of advocacy on issues of public interest” definition does not, on its face, require the statement to be “in connection with an issue of public interest” (unlike the other two prongs of the definition). Thus, if the speech giving rise to this suit involved statements about an issue under consideration by a government agency, as PCPC argues, that should satisfy PCPC’s obligation under the statute, without it needing to also show the speech was about an issue of public interest. (As I have written before, at least two courts have inserted a “public interest” requirement into this prong of similar state statutes, in Vermontand Louisiana. To date, this issue has not been litigated in DC).

At the end, even if PCPC needs to show that the speech giving rise to the suit was in connection with an issue of public interest, I believe it has the better of the arguments. It appears that PCPC’s speech was not about a particular product or service; rather, it was about the safety and efficacy about a product being examined by the federal government and of widespread interest to the general public. That speech, it seems to me, fits comfortably within the statute’s “public interest” definition.

A California intermediate court’s decision, in DuPont Merck Pharm. Co. v. Superior Court, seems analogous. There, the plaintiff alleged a drug manufacturer made false statements before regulatory bodies, the medical profession and the public in order to advance the market share of its product. The court summarized the defendant’s activities “as falling into two categories: (1) lobbying and other activities seeking to influence the decisions of regulatory and legislative bodies and (2) advertising, marketing, and public relations activities directed at the medical profession and the general public.”

The court held that the first category’s activities fell within the statute’s prong covering “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or other official proceeding authorized by law.” The court noted that, under this prong, it was not necessary that the statements be made in connection with an issue of public interest.

With respect to the other activities (advertising, marketing and public relations activities directed at the medical profession and the general public), the court held that, because of the widespread nature of the activities, and the seriousness of the conditions, this qualified the issue as one of public interest.

If a drug manufacturer’s statements about a particular product were held to be in the public interest, it seems to me that a trade association’s speech about products generally should be similarly covered. Stay tuned.

]]>In November 2014, this intrepid blogger trooped down to the DC Court of Appeals to watch the Mann v. National Review oral argument. In my post, I wrote that the panel was likely to conclude that the denial of an anti-SLAPP motion to dismiss was immediately appealable (having already held, in Burke v. Doe I, that the denial of a special motion to quash under the DC anti-SLAPP statute was immediately appealable), and that the tougher question would be how to apply the “likely to succeed” standard at the motion stage.

Yet, here we are, almost 18 months later, still waiting for the Court’s decision. Not only has that delay paralyzed the Mann lawsuit, with the Superior Court staying all proceedings in the case since April 2014, but it has impacted several other cases, so that there are now several appeals pending at the Court of Appeals, backed up like planes at O’Hare, all waiting to learn if the denial of an anti-SLAPP motion is immediately appealable. (As a recent article in the National Law Journal notes, the delay has prompted Mark Steyn, who did not appeal the denial of his anti-SLAPP motion, to ask the Superior Court to lift the stay, and has led Mann’s attorney to take the unusual step of asking the Court of Appeals to “issue its decision without further delay”).

Also in limbo are the movants in the VanderSloot case, which I briefly discussed in my last post. There, after non-parties received domesticated subpoenas seeking documents and testimony in connection with a libel suit then pending in Idaho, they responded by filing anti-SLAPP motions to dismiss. The Superior Court initially held that an anti-SLAPP motion to dismiss could only be filed in response to a “claim,” and that the subpoenas were not a “claim” within meaning of the statute.

Another case pending at the DC Court of Appeals is Washington Travel Clinic. v. Kandrac. There, the Superior Court granted most, but not all, of the defendant’s anti-SLAPP motion to dismiss and dismissed most of the plaintiff’s defamation complaint. The court denied the defendant’s subsequent motion for reconsideration and fees. The defendant appealed the partial denial of his anti-SLAPP motion, the denial of his motion for reconsideration and the denial of his request for attorneys’ fees, in September 2014. Since then, the Superior Court has scheduled, and then continued, status hearings every six months, while the parties (and the Superior Court) wait for the Mann decision.

]]>If an individual or entity believes a subpoena is aimed at silencing debate on a matter of public interest, can it invoke the DC anti-SLAPP statute in response? That is the question presented by a recent anti-SLAPP motion filed by the Competitive Enterprise Institute in DC Superior Court.

According to the CEI brief, in mid-March, it received a non-party subpoena demanding that CEI produce internal and external communications regarding climate change and its relationship with ExxonMobil. CEI maintains the subpoena is part of a campaign by various states attorneys general to investigate those who “oppos[e] the coalition’s preferred policy responses to climate change.”

CEI explains that the subpoena was issued by the DC Superior Court, which domesticated a subpoena issued by the Virgin Islands’ Attorney General. According to CEI, after it objected to the subpoena and stated its intent to file an anti-SLAPP motion, it was informed that the subpoena was being revoked, but that it could be reissued in the future. CEI’s brief states that, because of the ongoing threat of a subpoena, which it believes is an attempt to silence public debate, CEI was filing the anti-SLAPP motion.

Consistent with the Act’s purpose of protecting citizens from abuse of legal process and associated burdens, the Act defines “claim” as broadly as possible to “include[] any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” D.C. Code § 16-5501(2). Attorney General Walker commenced this action and obtained the subpoena pursuant to the Uniform Interstate Depositions and Discovery Act, D.C. Code §§ 13-441 et seq. (“UIDDA”), which establishes a procedure for a party to “request issuance of a subpoena” by the Court through a filing with the Court. D.C. Code § 13-443(a). Because Attorney General Walker’s filing pursuant to the UIDDA was a “filing requesting relief” from the Court – that the Court issue a subpoena imbued with its authority – it constitutes a “claim” subject to the Anti-SLAPP Act.

The problem for CEI is that a DC Superior Court judge has already rejected a similar argument. In April 2014, two non-parties received domesticated subpoenas, seeking production of records and a deposition in aid of a defamation suit, brought by Frank VanderSloot and then pending in Idaho. The subpoena recipients filed anti-SLAPP motions, seeking relief under the statute’s motion to dismiss provision. Like CEI, they argued that the domestication of the foreign subpoena qualified as a claim:

The Act provides an extremely broad definition of the term claim. It “includes any civil lawsuit, claim, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.” D.C. Code Ann § 16-5501(C). The petition that plaintiffs filed with this court on June 16, 2014 seeking issuance of the subpoena is a “filing requesting relief” that falls squarely within the definition of “claim” in the Anti-SLAPP Act. It has been assigned its own civil action number (14-CA-3684) and the clerk signed the subpoena, issuing the relief that was requested.

[I]t is apparent that the Council knew how to specify whether the Act applies to subpoenas, because it explicitly authorized special motions to quash subpoenas for personal identifying information in Section 5503. The fact that the Council specifically delineated that Section 5503 applies to subpoenas, and did not do so in Section 5502, directly undercuts the argument that Section 5502 applies to subpoenas as well.

Turning back to the definition of “claim” in the statute, the VanderSloot court held that it did not encompass a subpoena:

[T]he first five examples of a “claim” in Section 5501 involve requests for relief that are quite different from a subpoena. In fact, each of the examples — “any civil lawsuit, complaint, cause of action, cross-claim, or counterclaim” — involves a request for relief from the Court, not a request for information from a party or other person. . . . Finally, the term “other judicial . . . filing requesting relief” also does not apply to subpoenas. Indeed, subpoenas are not a “judicial” filing, but merely a request to the Clerk’s Office, which “shall issue a subpoena, signed but otherwise in blank, to a party requesting it,” Super. Ct. R. Civ. P. 45(a)(3), without any involvement from a judicial officer.

A few years ago, a California state appellate court reached the same conclusion under that state’s anti-SLAPP statute. In Tendler v. www.jewishsurvivors.blogspot.com, the plaintiff domesticated an Ohio subpoena in California, seeking the identity of anonymous commentators who allegedly defamed him. Three of the commentators moved, anonymously, to strike the subpoenas under California’s anti-SLAPP statute. Although the plaintiff then withdrew his subpoena, the trial court nevertheless awarded the defendants their attorneys’ fees.

The intermediate appellate court reversed, holding that, while California’s statute allowed an anti-SLAPP motion to be brought in response to “a cause of action,” a domesticated subpoena did not qualify as a “cause of action”:

a request for a subpoena, unlike a complaint, cross-complaint, or petition, does not contain any “cause of action.” An “action” is a proceeding “one party prosecutes against another for a declaration, enforcement, or protection of a right, or the redress or prevention of a wrong. A request for a subpoena does not seek to “prosecute another for the declaration, enforcement, or protection of a right” and does not seek “redress or prevention of a wrong.” A request for a subpoena merely seeks to compel the disclosure of information potentially relevant to a “cause of action.”

The defendants in Tendler argued, as CEI argues here, that the filing of the domesticated subpoena in the local court triggered the statute. The Tendler court disagreed: “Tendler never filed a complaint, petition, or other similar pleading that would be sufficient to initiate a lawsuit in California. His sole filing in California was a ‘civil case cover sheet’ that was accompanied by an affidavit of his attorney and a ‘request’ that the court ‘issue a case number and endorse’ the four subpoenas. A civil case cover sheet does not on its own initiate a lawsuit, nor does an affidavit and request for endorsement of subpoenas.” These decisions suggest that CEI will have an uphill battle in prevailing on its anti-SLAPP motion.

Two final thoughts: the DC Superior Court in VanderSloot held that, while the subpoena was not a “claim” under the DC anti-SLAPP statute, the plaintiffs’ motion to compel compliance with the subpoena qualified as a “claim.” In the CEI dispute, however, the Virgin Islands’ Attorney General has apparently not moved to compel compliance with the subpoena, foreclosing that argument. Finally, the movants in VanderSloot appealed the Superior Court’s denial of their anti-SLAPP motions to the DC Court of Appeals, where it has been pending for 18 months (behind the Mann case (which also involves CEI)). That logjam will be the subject of an upcoming post.

Update: At the request of the Virgin Islands’ Attorney General, the Superior Court has issued an Order terminating the action and revoking the CEI subpoena. CEI has indicated that it still intends to pursue sanctions.

]]>In late March, David Pitts filed suit against two local television stations (Channels 4 and 7), their parent companies, and Patch Media, which runs hyperlocal websites. According to the Superior Court Complaint, Pitts was sentenced in March 2015 for burglary and identity theft. He alleges that, on or about March 20, 2015, “Defendants” reported that he had been sentenced to “two years in jail for setting fires, or arson,” citing to a Channel 4 article.

Pitts alleges that he was never charged with, or admitted to, arson. He alleges that he learned about the allegedly false and defamatory statements when he was released from jail in July 2015. He alleges that, despite a takedown request from his attorneys in November 2015, the webpages remain publicly available. Pitts alleges that the statements give rise to claims for defamation, false light/invasion of privacy and intentional infliction of emotional distress.

The defendants have now filed separate anti-SLAPP motions (broadcast defendants’ anti-SLAPP motion here; Patch anti-SLAPP motion here). Both motions argue that Pitts’ complaint is subject to the DC anti-SLAPP statute because it arises from an act in furtherance of the right of advocacy on issues of public interest. The motions first argue that their communications to the public were about a crime, which easily qualifies as an issue of public interest. They also argue that the communications were about a pending criminal proceeding, which also qualifies as an act in furtherance of the right of advocacy on issues of public interest. These arguments are strong and should shift the burden to Pitts to show that he is likely to prevail on the merits. Both motions argue he cannot do so.

The broadcast defendants’ anti-SLAPP motion admits that they published articles on March 20, 2015, reporting on Pitts’ sentencing, but argues that those articles cannot be reasonably interpreted as reporting that Pitts was sentenced for arson or that he intended to harm life or property, as he alleges in his Complaint.

The broadcast defendants next argue that, while their March 20 reports did include that Pitts admitted to setting fires, and that he was sentenced to prison for that conduct, those statements were substantially true. They attach a “proffer of facts,” which Pitts signed and acknowledged was “true and correct,” and which includes the following statements:

on September 4, 2014, at approximately 12:50am, “the defendant set a chair and bottles on fire near the parking attendant booth of the parking garage at Foxhall Square.”

“The Defendant then walked to part of the complex near the Starbucks and lit some newspapers on fire on the ground.”

“This fire self-extinguished, and the defendant returned and lit the newspapers on fire again.”

“Then, at approximately 1:00am, the defendant walked to a wooded area near the adjacent Embassy Park complex, and set a small fire in a wooded area. This fire grew, and had to be extinguished by the D.C. Fire Department.”

The broadcast defendants also cite to the sentencing hearing transcript, where the government argued that it was seeking a one-year prison sentence, in part, because of the fires, and the trial judge stated that she considered the fire-setting in determining Pitts’ sentence. These facts, the broadcast defendants argue, show that their reports were substantially true. Finally, the broadcast defendants argue, their reports were fair and accurate reports of court proceedings, and are thus protected by the common-law fair report privilege. For all these reasons, the broadcast defendants argue that the defamation and intertwined related torts fail as a matter of law.

The broadcast defendants note that Pitts’ complaint references a Channel 4 article. They argue that this article was published in January 2015, so that any claims based upon it are barred by the District’s one-year statute of limitations for defamation actions. This is the one argument by the broadcast defendants that gave me some pause. Under D.C. Code § 12-302(a)(3), “when a person entitled to maintain an action is, at the time the right of action accrues . . . imprisoned . . . he or his proper representative may bring action within the time limited after the disability is removed.”

Thus, in Von Kahl v. Bureau of Nat. Affairs, Inc., a DC federal court rejected the defendant’s argument that a libel claim was time barred, explaining that “the limitations period is tolled since plaintiff has been continuously incarcerated since the claims arose.” In Brown v. Jonz, DC’s highest court held that “[a]lthough ‘imprisoned’ under D.C. Code § 12-302(a)(3) is not defined in the statute, the plain and ordinary meaning of this term is broad enough to encompass pretrial detention and other forms of confinement.” Here, to the extent Pitts was incarcerated at the time of the January 2015 article, he might be able to argue that the limitations period was tolled until his release in July 2015, making his March 2016 suit timely.

The remaining defendant, Patch Media, filed its own anti-SLAPP motion. In it, Patch explains that it did not publish any articles in March 2015, and only published two articles in September 2014, which were substantially true because they fairly and accurately relied upon the arrest report:

Patch accurately reported Plaintiff’s arrest following a burglary and a series of fires that Plaintiff admitted setting. Patch never made any of the false allegations that Plaintiff complains of, including never using the word “arson” or claiming that Plaintiff was sentenced to two years in jail. . . . [G]iven Plaintiff’s unavoidable inability to avoid this privilege, it is impossible for Plaintiff’s claims to succeed on their merits.

Patch argues that Pitts’ allegation that “Defendants” published a defamatory article, while citing only to one article by another defendant, is insufficient to plead a plausible cause of action against Patch. Finally, argues, Patch, DC’s one-year defamation statute of limitations has long since run on Patch’s September 2014 articles, so that any claim by Pitts that is based on those two articles is time barred, and this statute of limitations applies to the related torts that arise out of the allegedly defamatory publication (i.e., the claims for false light/invasion of privacy and intentional infliction of emotional distress).

My two cents: The March 20 articles appear to be fair and accurate reports of the sentencing hearing and any errors appear minor, so that they would not have changed the impression in the mind of a reasonable reader. Any claim based on the September 2014 Patch articles or the January 2015 Channel 4 article appears to be time-barred, unless Pitts was incarcerated during this entire time, in which case he might be able to argue that the statute was tolled. Even if the statute was tolled, the September 2014 Patch articles appear to fairly and accurately reflect the arrest report.

Pitts’ best chance of survival is to show that the January 2015 Channel 4 article is not time barred (because of his incarceration) and that it falsely reported that he “pleaded guilty this week to setting several small fires,” when, in fact, he pleaded guilty to burglary and identity theft. It will then be up to the court to decide if there is a material difference between reporting that Pitts “pleaded guilty to setting several small fires” or reporting that he pleaded guilty to burglary and identity theft and admitted to setting several small fires.

]]>The DC anti-SLAPP statute has been invoked in a Superior Court lawsuit in which plaintiffs arguing that students need to be free from disruptions in the school environment are facing off against anti-abortion protestors.

According to a complaint filed by the Two Rivers Charter School, anti-abortion protestors have been vocally protesting the construction of a Planned Parenthood facility that is adjacent to its elementary school building and across the street from its middle school building. Two Rivers alleges that the protestors have yelled anti-abortion statements at students and parents and that one protestor repeatedly approached students and parents and attempted to hand them brochures. It alleges that the defendants’ conduct constitutes an intentional infliction of emotional distress, a private nuisance and is part of a conspiracy, and seeks an order requiring the protestors “to be moved a reasonable and safe distance from the location of Two Rivers’ buildings.”

Several of the defendants have filed anti-SLAPP motions. Their briefs (here, here, here and here), generally argue that the lawsuit arises from an oral statement made “in a place open to the public or a public forum in connection with an issue of public interest,” and thus falls within the scope of the DC anti-SLAPP statute. The motions argue that Two Rivers cannot show a likelihood of success on the merits because the defendants’ conduct is similar to that upheld by the Supreme Court in Snyder v. Phelps.

There, the Court held that protestors could not be held liable for intentional infliction of emotional distress because the First Amendment protected their speech (protests at the funerals of US military members) that was made on a public sidewalk, about an issue of public concern. Here, the defendants argue, their speech is “plainly protected under the First Amendment. It addressed a matter of public import, and it was expressed publicly on the public ways.” The defendants also argue that District courts have previously rejected attempts to stop similar protests. Finally, they argue, Two Rivers lacks standing to assert claims on behalf of its students and their parents.

Two Rivers’ opposition brief first argues that its complaint is not a SLAPP because it “does not involve one side of a public debate conjuring up a lawsuit solely to silence or intimidate their opposition.” Rather, Two Rivers explains, it “takes neither side in the larger cultural debate that is the focus of Defendants’ efforts,” and is seeking only a safe environment for its students: “Plaintiffs object only to Defendants’ methods of expressing their views, and would have the same opposition irrespective of the message carried by a group of strangers to the school who interfere with the operation of the school and its students and pose a safety risk.”

The defendants’ reply briefs take exception to the argument that the complaint somehow falls outside the statute’s protection, with Cirignano arguing that “no provision of the act exempts otherwise covered claims based on the viewpoint or motives of the claimant,” and Nicdao arguing that “[t]he motives and ideology of the plaintiffs are irrelevant.” Indeed, the DC Court of Appeals held, just last month in Burke II, that

“nowhere does the Act refer to or define a ‘classic’ SLAPP suit as distinct from one against which the defendant may invoke the statute’s protections after a threshold prima facie showing. . . . The protections of the Act, in short, apply to lawsuits which the D.C. Council has deemed to be SLAPPs. . .”.

This statement would appear to support the defendants’ arguments that Two Rivers’ motivations are not relevant to determining whether the statute applies to the case.

Turning to the merits, Two Rivers argues that two of the anti-SLAPP motions were filed too late. Although the DC anti-SLAPP statute provides 45 days for the filing of an anti-SLAPP motion, Two Rivers notes that one motion (Cirignano) was made on the 46th day and another (Weiler) was filed on the 47th day after service of the complaint.

In Newmyer v. Huntington, the Superior Court suggested that it might be willing to overlook an untimely-filed anti-SLAPP motion: “if the Court viewed Dr. Huntington’s counter-suit as a purely strategic effort to silence Mr. Newmyer, or to punish him for exercising his right to bring his lawsuit, the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five framework.” Because the Newmyer court rejected the anti-SLAPP motion on other grounds, however, it did not reach this issue. (The DC Court of Appeals later stated that the Newmyer anti-SLAPP motion was properly denied because, among other reasons, it was filed too late). On the other hand, in Sherrod v. Breitbart, the DC Circuit held that an anti-SLAPP motion filed beyond 45 days was untimely because the deadline was “statutory” and could not be extended by parties or the court.

Cirignano’s reply brief argues, however, that, because the 45th day fell on a Sunday, he timely filed his anti-SLAPP brief the next business day, as allowed by the DC Superior Court Rules. This question, of whether the time for filing an anti-SLAPP motion extends to the next business day when the 45th day falls on a weekend or holiday, has not been decided under the DC anti-SLAPP statute. (Weiler asserts that he was not served on December 19, as Two Rivers maintains, but was rather served on December 22, making his motion timely. Again, it will be interesting to see how the Superior Court resolves this factual dispute).

Two Rivers’ opposition brief also appears to argue that protests here are materially different from the protests in Snyder, and thus do not arise from “an act in furtherance of the right of advocacy on issues of public interest”: “Defendants primarily targeted the students and the school, rather than addressing a broader audience about society’s ills, as in Snyder. Defendants’ speech should not be given the protection of the Anti-SLAPP Act for being a matter of public interest.” This argument is weak as it seems, at least to me, that the protests here fall within the scope of the statute. Indeed, each of the defendants attack this suggestion in their reply brief.

The remainder of the Two Rivers’ brief argues that, even if the defendants have satisfied their burden of showing that the suit arises from “an act in furtherance of the right of advocacy on issues of public interest,” the claim is likely to succeed on the merits. Two Rivers also asks the Court to schedule an evidentiary hearing, and allow Two Rivers to serve targeted discovery on the defendants.

This last point is interesting. Although the DC anti-SLAPP statute stays discovery until resolution of an anti-SLAPP motion, “[w]hen it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted.”

In opposing an anti-SLAPP motion filed against it, 3M argued that it should be allowed to serve discovery. I do not believe that court (which denied the anti-SLAPP motion on the basis that the DC statute was inapplicable in a federal court diversity case) allowed targeted discovery. Similarly, in opposing an anti-SLAPP filed against him, Joseph Farah, in passing, mentioned that targeted discovery would allow him to defeat the motion; the federal court there instead stayed all discovery and ultimately granted the anti-SLAPP motion.

On the local level, Michael Mann’s opposition to the anti-SLAPP motions filed against him argued that, if his evidence was somehow insufficient to overcome the anti-SLAPP motions, the Superior Court should allow targeted discovery. The Superior Court denied the anti-SLAPP motions, mooting the request.

Here, Two Rivers has identified the categories of discovery it believes are necessary to show a likelihood of success on the merits. In response, Cirignano argues that Two Rivers’ request “comprises thirteen broad categories of information which are indistinguishable from full merits discovery” and that Two Rivers has not shown how “the requested discovery is ‘likely’ to enable” Two Rivers to defeat the anti-SLAPP motions. Nicdao echoes these arguments and notes that the anti-SLAPP statute was enacted to prevent broad discovery, which is what Two Rivers is seeking, according to Nicdao. Stay tuned.

]]>Waaaaaaay back in early 2012, after a defendant (Huntington) filed a counterclaim against a plaintiff (Newmyer) for defamation, false light and related torts, Newmyer responded by filing an anti-SLAPP motion (you can read more about the case here). Newmyer’s anti-SLAPP motion was denied by the Superior Court judge, who found that it was filed too late (although he stated that, if he believed the counterclaim was a true SLAPP, “the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five day framework”).

The Superior Court did not need to wrestle with that question, however, because it concluded that there was “no indication” that “this is a claim designed to silence or punish one for speaking out on issues of public importance.” According to the Superior Court, “it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation” when, in the court’s view, “there is no economic bullying here by Dr. Huntington and his claims are not likely to deter Mr. Newmyer from being heard on his contentions.” The Superior Court allowed Huntington to recover his fees, concluding that the anti-SLAPP motion was “baseless and, therefore frivolous.”

The subject order is not appealable under the collateral order doctrine, see Cohen v. Beneficial Loan Corp., 357 U.S. 541, 546 (1947), and the District’s anti-SLAPP statute does not provide for interlocutory review.

Last year, the entire case finally reached the DC Court of Appeals (after discovery and cross motions for summary judgment). In late December 2015, the Court affirmed the Superior Court’s resolution of the anti-SLAPP motion:

We affirm the trial court’s denial of the motion and award of attorney’s fees for two reasons. First, Mr. Newmyer filed his motion on February 29, 2012, more than forty-five days after Dr. Huntington filed his counter-complaint on May 12, 2011. See D.C. Code §16-5502(a) (placing a forty-five day limit on such claims). Second, Mr. Newmyer failed to establish any issue of public interest. See D.C. Code §16-5501(3) (2012 Repl.) (stating that an “‘[i]ssue of public interest’ means an issue related to the health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place” and “shall not be construed to include private interests.”).

My takeaway: the decision shows why there should be an immediate right to appeal the denial of an anti-SLAPP motion. Anti-SLAPP statutes protect parties from “expensive and time consuming discovery” that is often part of libel litigation. If the DC Court of Appeals had decided, in December 2015, that Newmyer’s anti-SLAPP motion should have been granted, it would have come far too late for Newmyer, who had to litigate the case for over three years, with its enormous attendant costs. Making a party go through the entire lawsuit before being able to secure appellate review seems inconsistent with the purpose of the statute: avoidance of potentially unnecessary litigation.

]]>Here are my three takeaways from yesterday’s DC Court of Appeals’ decision, holding that a successful movant under the DC anti-SLAPP statute “is entitled to reasonable attorney’s fees in the ordinary course – i.e., presumptively – unless special circumstances in the case make a fee award unjust,” and reversing a Superior Court decision which refused to award fees to a successful movant. (You can read my prior blog post on this appeal here).

First, the Burke II court specifically refuted the argument that the DC anti-SLAPP statute applies only to a “classic” SLAPP suit. (I have written previously about the tendency for parties, and courts, to fall into this trap). According to the Burke II court:

nowhere does the Act refer to or define a “classic” SLAPP suit as distinct from one against which the defendant may invoke the statute’s protections after a threshold prima facie showing. . . . The protections of the Act, in short, apply to lawsuits which the D.C. Council has deemed to be SLAPPs. . .

Second, the court held that a successful SLAPP movant is presumptively entitled to recover attorney’s fees, without any additional showing of frivolousness or wrongful motivation. The Burke II court grounded its finding in the statute’s language, which imposed a frivolousness requirement in order for the party opposing the anti-SLAPP motion to recover its fees, but did not include a similar requirement for a successful movant:

In clear contrast to the responding party’s eligibility for fees, the Act imposes no requirement on a successful movant under § 16-5504(a) to show either of the twin facts relied on by the trial court – improper motive (bad faith) or total lack of merit in the underlying suit – before reasonable attorney’s fees may be awarded.

Third, the court held that, although the statute provided that the court “may” award fees to a successful anti-SLAPP movant (suggesting an element of discretion), both the statue’s stated purpose (“to award the costs of litigation to the successful party on a special motion”) and its legislative history (which based the DC anti-SLAPP statute on then-pending federal legislation that provided for the recovery of attorneys’ fees) supported a finding that a successful anti-SLAPP movant was presumptively entitled to recover its fees.

As I’ve previously written, attorneys fees are an important component of anti-SLAPP statutes. This strong opinion, affirming a presumptive right to recovery by a successful movant, will go a long way towards providing the DC anti-SLAPP statute with teeth.

]]>An important decision issued by the Second Circuit last week adds to the growing dissonance among the federal circuits on anti-SLAPP motions. The ruling could impact a case pending before the DC Court of Appeals, and creates another circuit split that will ultimately need to be resolved by the Supreme Court.

In Ernst v. Carrigan, the district court partially granted a motion under Vermont’s anti-SLAPP statute and dismissed portions of a libel complaint, but denied the anti-SLAPP motion as to remaining parts of the complaint. After the district court declined to certify the opinion for interlocutory appeal, the parties cross-appealed.

The Second Circuit explained that, unless the appeal was subject to the collateral order doctrine, the appellate court lacked jurisdiction (because the appeal was from a non-final decision). To invoke the collateral order doctrine, the Second Circuit held, the order must (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.

The Second Circuit held that the appeal from the anti-SLAPP decision did not qualify for the collateral order doctrine because it was not “completely separate” from the merits. Rather, the Ernst court reasoned, the anti-SLAPP analysis, which requires an early consideration whether the plaintiff’s claim is meritorious, is “inescapably intertwined” with the ultimate issues to be decided by the trial court:

Determining whether the Carrigans’ and Kauffmans’ statements were “devoid of any reasonable factual support” (as Vermont’s anti-SLAPP statute requires) is by no means “conceptually distinct” and “significantly different” from whether the statements were false (as Vermont defamation law requires). The same goes for consideration of whether the statements lacked “any argument basis in law” and whether the statements were unprivileged. The requirement of the anti-SLAPP statute that the statements “caused actual injury” is indistinguishable from the last element of a defamation claim: actual harm suffered by reason of the defamatory statements. In sum, a special motion to strike under Vermont’s anti-SLAPP statue “involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.”

The Ernst court also rejected an argument that the Vermont anti-SLAPP statute was akin to immunity from trial (which has been held to be immediately appealable under the collateral order doctrine). It explained that immunity decisions are immediately appealable because they turn on pure legal questions. The anti-SLAPP decision, on the other hand, turned on “fact-based determinations,” making it inappropriate for interlocutory appeal.

The Ernst decision is noteworthy for two reasons. It creates a circuit split on the question of whether anti-SLAPP resolutions are immediately appealable under the collateral order doctrine because, as the Second Circuit recognized, its decision directly conflicts with decisions from the Fifth and Ninth Circuits. This new circuit split joins the circuit split created by the DC Circuit in the Abbas case, over whether anti-SLAPP statutes apply in federal court. And, on that point, the Ernst court stated: “[b]ecause we conclude that we lack appellate jurisdiction, we do not reach the issue of whether Vermont’s anti-SLAPP statute is applicable in federal court.”

On the local level, the DC Court of Appeals dismissed an appeal from the denial of an anti-SLAPP motion in Huntington v. Newmyer, stating, in a per curiam order, that it was not appealable under the collateral order doctrine. In Doe v. Burke, however, the same court held that an order denying a special motion to quash was immediately appealable under the collateral order doctrine. The Burke court emphasized that it was not addressing “the related but separate question of whether an order denying a special motion to dismiss under the Anti-SLAPP Act is immediately appealable.”

In March 2013, three Oklahoma plaintiffs filed suit against a media entity, alleging that certain news reports were false and defamatory. The statements were made before Oklahoma’s anti-SLAPP statute went into effect. After the statute’s effective date, the defendants moved to dismiss the suit under the then-new anti-SLAPP statute.

my finding is that the burden of proof on the Plaintiff does not change. It simply is accelerated a little bit, in part. So, that instead of having to actually provide preponderance of the evidence proof, he has to show early on that he is likely to be able to do so. That is not a substantive change in his burden of proof. It does not add anything that he will have to do. It simply changes the timing of when he has to do it. He has to do a little bit of it now. He has to show likelihood, that he is likely to get there and then he actually has to get there. In the Court’s view, it does not change the substance of the law. The statute then applies.

The result was different in Oklahoma. There, after the trial court denied the defendants’ anti-SLAPP motion, an Oklahoma intermediate appellate court affirmed the denial, holding that the statute affected substantive rights by essentially providing immunity from suit for certain causes of action and by providing for the mandatory recovery of fees and costs by a successful movant. These provisions, the court held, meant that the statute could not be applied retroactively.

Obviously the question of whether a “new” anti-SLAPP statute applies “retroactively” ceases with the passage of time. That being said, given the ongoing effort to pass a federal anti-SLAPP statute, and with several states considering whether to enact, or expand, their anti-SLAPP statutes, it might not be the last time this issue comes up.

First are decisions in Vermontand Louisiana, interpreting those states’ anti-SLAPP statutes in a way that requires all motions to be based upon speech in connection with a public issue or an issue of public interest. Both courts arrive at this conclusion only by ignoring the plain language of the respective statutes, which did not include a public interest requirement for certain anti-SLAPP motions – those based upon “an oral or written statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law” (Vermont) or “[a]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” (Louisiana). Notwithstanding the foregoing, both courts imported a “public interest” requirement into these prongs. The Vermont Supreme Court was transparent that one of its motivations was a concern about anti-SLAPP motions otherwise flooding the courts.

The great expansion of anti-SLAPP motions was front and center in a California intermediate appellate court decision issued in August, Hewlett-Packard Co. v. Oracle Corp., in which the court openly begged the California General Assembly to curb the flood of anti-SLAPP motions. There, after a lengthy litigation spanning almost two years, and on the eve of a trial on damages, Oracle filed an anti-SLAPP motion. After the anti-SLAPP motion was denied by the trial court, Oracle appealed (which stayed the underlying litigation).

The California appellate court affirmed denial of the anti-SLAPP motion. In doing so, however, it noted that, while “[a]n archetypal SLAPP would be an action in which ‘a developer sues neighborhood activists for having spoken out against the developer’s project in some public forum,’” the California anti-SLAPP statute “sweeps far beyond this paradigm, reaching any lawsuit or claim found to arise from a party’s actions in litigation, whether or not the activities – or the litigation – have any connection to an issue of public significance or interest, or to anything that might plausibly be labeled ‘public participation.’ As a result of this overbreadth, we have seen far more anti-SLAPP motions in garden-variety civil disputes than in cases actually resembling the paradigm.” The Oracle court ended its decision with a plea for relief:

The case thus provides yet another illustration of the many ways in which the current anti-SLAPP statute produces unintended and even perverse results. It can be argued that the overbreadth of the statute has made the cure worse than the disease. To be sure, the statute achieves its intended purpose in true SLAPP cases, i.e., patently meritless suits brought to punish and harass adversaries in the public arena. But if it makes short work of suits like that, it makes much longer and more expensive work of many suits bearing no resemblance whatever to the targeted paradigm. It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.

* * *

We can only join a chorus of other courts in pleading with the Legislature to examine the real-world effects of the statute on ordinary civil disputes and to seek a ways to reduce the overwhelming temptations it currently offers to engage in abuses at least as injurious as those it was designed to correct.

while the TCPA might indeed capture some “legal actions” that are truly SLAPPs as conventionally understood, the vastness of the range of “legal actions” that are deemed suspect by this statutory framework and ultimately excised from the civil justice system ensures that the Act will operate arbitrarily in relation to any “anti-SLAPP” goal in many, if not most, of the cases to which it applies. This case is a good illustration.

Serafine has not preserved any contention that the Blunts asserted their counterclaims with the objective of punishing or chilling her exercise of expressive freedoms, as might be characteristic of a SLAPP. Her argument, rather, is merely to the effect that the TCPA, as written, provides her (however fortuitously) with a tactical advantage that she is entitled to wield in her lawsuit against the Blunts. The Blunts’ sin, in other words, is not that they asserted a “legal action” that anyone contends is truly a SLAPP in the conventional sense, but merely that they pleaded compulsory counterclaims that happened to implicate the TCPA (at least in part) and that they could not overcome the “prima facie case” requirement.

In addition to those courts sounding the alarm about the flood of anti-SLAPP motions, other courts have recently held that anti-SLAPP statutes are constitutionally infirm, or, at a minimum, problematic.

]]>One of the interesting things about the Doe v. Burke II appeal is the Superior Court’s reasoning that, although the complaint was dismissed under the DC anti-SLAPP statute, no attorneys’ fees were warranted because the case was not a “classic” SLAPP. The decision struck me as interesting because numerous movants have argued that their case is a “classic” or “typical” SLAPP. As I explain below, while every movant undoubtedly would like to argue that its case presents a “classic” SLAPP, routinely doing so has the potential to distract the court and could result in legitimate anti-SLAPP motions being denied because the court focuses on whether the case is a “classic” SLAPP, instead of focusing on whether it satisfies the requirements of the statute.

In one of the examples provided, the ACLU discussed the efforts of two Capitol Hill advocates that opposed the efforts of a certain developer. When the developer was unable to obtain a building permit, the developer sued the activists and the community organization alleging they “conducted meetings, prepared petition drives, wrote letters and made calls and visits to government officials, organized protests, organized the preparation and distribution of . . . signs, and gave statements and interviews to various media.”

This developer vs. activist scenario easily fits into the model of a “classic” SLAPP suit. But the DC Council did not limit the DC anti-SLAPP statute only to “David v. Goliath” suits; rather, it broadly defined the type of conduct that falls within the scope of the statute (oral or written statements or other expressive conduct) in a variety of forums (in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, in a place open to the public or a public forum in connection with an issue of public interest).

Opening the “classic/typical” SLAPP door also invites the court to focus on whether the lawsuit fits the paradigmatic “David v. Goliath” framework. That can result in troubling decisions where court denies an anti-SLAPP motion because it is not a “typical” or “classic” SLAPP, even though it otherwise falls within the statute’s scope.

there is no other indication that this is a claim designed to silence or punish one for speaking out on issues of public importance. . . . [T]here is no economic bullying here by Dr. Huntington, and his claims are not likely to deter Mr. Newmyer from being heard on his contentions. . . . Of course, the statute is available to any litigant, rich or poor, who can assert its substantive protection to shield against harassing lawsuits; however, it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation.

The fact is that, while the David v. Goliath scenario is often found in SLAPP suits, it is not the only evidence that a lawsuit falls within the scope of the statute and, more importantly, is not a requirement for granting an anti-SLAPP motion. By myopically focusing on whether the lawsuit is a “classic” SLAPP, parties risk distracting the Court from the true analysis: whether the lawsuit falls within the scope of the statute.

]]>After my post on the Vermont Supreme Court’s decision, requiring all motions under Vermont’s anti-SLAPP statute to be based upon speech made in connection with an issue of public interest, a reader sent me a decision from a Louisiana appellate court, which imposed an identical requirement under Louisiana’s anti-SLAPP statute.

In Yount v. Handshoe, Handshoe published a pornographic drawing by Yount’s son, which had been filed with a court as part of a divorce proceeding between the Younts. According to the court’s opinion, Handshoe annotated the picture to identify the author as a minor child, and the proceeding in which the picture was filed. (The opinion states that Handshoe operated a website that reported on events in the region, and suggested that Handshoe had a prior history with Yount: “Mr. Yount is a paralegal and process server who had served Mr. Handshoe process in other defamation suits unrelated to the instant case”).

The court’s opinion explains that the picture was initially taken down after the trial judge overseeing the divorce sealed parts of the record and ordered the picture removed from the Internet(!). According to the court, Handshoe then republished the posts containing the drawing, despite his knowledge of the trial court’s order. As a result, the father (Yount) filed a suit for defamation, intentional infliction of emotional distress, cyberstalking and invasion of privacy.

The trial court granted Handshoe’s anti-SLAPP motion. On appeal, the Louisiana intermediate appellate court reversed, holding that the challenged speech (the posting of the picture) arose out of a private matter, and thus was not subject to the Louisiana anti-SLAPP statute.

The court explained that, under § 971(A)(1) of Louisiana’s anti-SLAPP statute, “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike . . .”. It noted that, under the statute, an act “in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes:

(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.

(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.

(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(Eagle-eyed readers have probably noted that this very similar to the definition found in the Vermont anti-SLAPP statute).

The appellate court agreed with the trial court that the challenged speech did not fall within the scope of subsection (a) “because the comments were made on a blog, not before legislative, executive or judicial proceedings,” and did not fall within the scope of subsections (c) and (d) “because both required the statements to be ‘in connection with an issue of public interest’ and the issue in this case, a domestic divorce proceeding between private individuals, did not constitute an issue of public interest.”

It then examined the trial court’s reasoning – that, because the picture was connected to a pending judicial proceeding, it fell within the scope of subjection (b) – and rejected it. The court reasoned that subsection (b) was ambiguous:

The language of [subsection (b)] can be interpreted in such a way that the special motion to strike will apply to any and all statements made in connection with any issue under consideration by a government body or, alternatively, that the motion will apply only to statements made in connection with public issues under consideration by a government body. We believe that the former interpretation leads to absurd consequences. Under this reasoning, (which is the same interpretation used by the trial court), any cause of action arising from any written or oral statement made in connection with any kind of government activity or proceeding would be subject to special motions to strike regardless of whether or not the statements were made in connection with a public issue. Consequently, any party could defame or invade the privacy of a person involved in a divorce proceeding, traffic violation, child custody dispute, marriage, mortgage registration, passport application, or driver’s license renewal and be immunized from legal repercussions of damage to others through the use of an extraordinary procedural remedy.

* * *

To interpret subsection (b) as immunizing all statements made in connection with any issue, including those private issues that are of no public significance whatsoever, considered by a governmental body, would supersede the operative clause of the statute designed to protect individuals from strategic lawsuits against public participation. Section (A)(1) requires that the acts in question be in connection with a public issue. Had the legislature intended for special motions to strike to apply to all suits arising from speech or petition related activities, it would have not included phrases such as “in connection with a public issue” in the statue’s operative clause

The Yount court concluded that legislative history and actual practice supported its conclusion, noting that Louisiana’s anti-SLAPP statute was enacted to “encourage participation in matters of public significance” and that a review of Louisiana jurisprudence showed that the statute had traditionally been limited to “protect[ing] comments related to public issues.” Against this backdrop, it concluded that the most reasonable interpretation was that all claims must have a “public interest” nexus. Because of its earlier conclusion that the divorce proceeding was not a matter of “public interest,” the court held that the anti-SLAPP motion was improperly granted by the trial court

My takeaway: like the Vermont Supreme Court’s Felis decision, I am stunned by this decision, which simply ignores the statute’s language. The Louisiana legislature defined “act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” to include “[a]ny written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.”

If the legislature intended this subsection to require a public interest nexus, it could have easily said so (as it did in subsections (c) and (d)). It did not. Rather, the legislature apparently concluded that, if the statement was made “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law, it was covered by the statute. For the court to rewrite the statute – and impose a public interest requirement – is, candidly, baffling.

]]>Does a party moving under the DC anti-SLAPP statute need to show that the claim arises from a statement made in connection with an issue of public interest? While the text of the DC anti-SLAPP statute suggests the answer is no, the Vermont Supreme Court, interpreting Vermont’s virtually-identical anti-SLAPP statute, recently held that the answer is yes.

(a) an oral or written statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(b) an oral or written statement made in a place open to the public or a public forum in connection with an issue of public interest; or

(c) any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.

On its face, the DC anti-SLAPP statute thus applies to “an oral or written statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” without including the “public interest” requirement found in the other subsections of the statute.

In a recent decision, the Vermont Supreme Court was asked to decide if this interpretation of Vermont’s anti-SLAPP statute was correct. Like the DC anti-SLAPP statute, the Vermont statute states that “[a] defendant in an action arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution may file a special motion to strike under this section.”

Like the DC anti-SLAPP statute, the Vermont statute defines the statute’s operative language: “[a]s used in this section, ‘the exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution’ includes:

(1) any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3) any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or

(4) any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances.”

In Felis v. Downs Rachlin Martin, PLLC, one of the defendants (GFC) was hired by attorneys representing a spouse in a contentious divorce action to appraise the other spouse’s interest in several business enterprises. After the divorce was finalized, the plaintiff sued GFC, alleging that its expert testimony in the prior divorce proceeding was part of a strategy to unnecessarily run up fees.

GFC moved to dismiss the Complaint for a variety of reasons, including that, because the challenged statements were made “before a . . . judicial proceeding,” the suit was foreclosed by Vermont’s anti-SLAPP statute. The trial court granted GFC’s motion to dismiss on other grounds and, as a result, held that the anti-SLAPP motion was moot. The Vermont Supreme Court affirmed the dismissal. Notwithstanding this ruling, it held that it needed to decide if dismissal was also proper under the anti-SLAPP motion because, if that motion was successful, GFC might be able to recover its attorneys’ fees.

The Felis court described the issue as follows:

Section 1041(a) provides that the statute applies to actions “arising from the defendant’s exercise, in connection with a public issue,” of free speech and petitioning rights. Section 1041(i), in turn, lists four specific types of activity that fall within the language of § 1041(a) – the “exercise, in connection with a public issue,” of free speech and petitioning rights. The descriptions of the activities set forth in §§ 1041(i)(3) and (4) expressly include the element “concerning an issue of public interest.” The descriptions of the activities in §§ 1041(i)(1) and (2) – including the activity applicable here, testimony in a judicial proceeding – do not contain that element. GFC therefore argues that the statute does not require testimony in a judicial proceeding to concern a public issue. To put it another way, GFC’s reads the statute to mean that all testimony in a judicial proceeding inherently concerns a public issue.

The Felis court acknowledged that GFC’s interpretation was the “most consistent” with the statute’s language, and that it was consistent with a prior federal court decision holding that “a defendant need not demonstrate that a statement concerns a public issue if it falls within § 1041(i)(1) or (2)” of the Vermont anti-SLAPP statute. The Felis court also conceded that GFC’s interpretation was consistent with a decision from the California Supreme Court, interpreting California’s anti-SLAPP statute (which served as the model for the Vermont anti-SLAPP statute).

Notwithstanding these concessions, the Felis court rejected GFC’s interpretation. It held that the statute “was internally inconsistent and ambiguous” because, according to the court, “subsection (a), which governs the scope of the statute generally” “requires the defendant’s exercise of constitutional rights be in connection with a public issue,” while subsection (i) does not contain this requirement.

Having concluded that the statute was ambiguous, the court turned to legislative intent. It explained that the Vermont legislature enacted the anti-SLAPP statute to “address[] the increase in lawsuits brought to chill free speech and petitioning rights” and “to encourage continued participation in matters of public significance.” Thus, reasoned the Felis court, “the intent of the bill was to prevent retaliatory litigation against citizens exercising their right to free speech and their right to petition the government on matters of public interest. . . . We conclude from the legislative history that the Legislature intended that the protected actions be connected to matters of public interest and intended to make that connection an element of an anti-SLAPP motion.”

The Felis court appeared to fear that the alternative interpretation advanced by GFC would flood the Vermont courts with anti-SLAPP motions that were raised in cases that have nothing to do with the public interest. It noted that this happened in California – “where California’s statute has been invoked in thousands of cases on a broad range of legal issues and filing a motion under the statute has become almost a matter of course.”

Consequently, the court reasoned, because “there is no evidence that the Vermont Legislature intended, or even foresaw, the expansive use of the anti-SLAPP remedy in circumstances far afield from the paradigm on which the statute was based” the “way to reduce overuse of the remedy is to enforce the requirement of § 1041(a) that a defendant’s exercise of constitutional rights be in connection with a matter of public issue, as the legislative history demonstrates the Legislature intended.”

My takeaway: it is hard to read the court’s opinion as anything other than visceral reaction that anti-SLAPP motions were going to flood the courts. That fear appears unfounded because, as the court’s opinion reflects (ironically), this was the first case interpreting the Vermont anti-SLAPP statute to reach the state’s highest court in the 10 years since the statute became effective.

At the end, I believe the court’s initial conclusion was wrong. The Vermont legislature, like the California legislature and the DC legislature, defined the statute to apply to various circumstances. Some require a nexus to an issue of public interest. But others do not. There is nothing ambiguous about that decision. Instead, the legislature made a decision that, if it is a written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, it is ipso facto, an issue of public interest.

The more immediate question is whether this interpretation will impact the DC anti-SLAPP statute. To date, at least two courts interpreting that statute have agreed that, because the claims arise from statements made in connection with an issue under consideration by a legislative, executive, judicial or other official proceeding authorized by law, they are covered by the DC anti-SLAPP statute.

For example, in Payne v. District of Columbia, the plaintiff alleged that the District’s then-CFO, defamed him when he publicly stated that the plaintiff was terminated for poor performance. Payne alleged that this statement was false, and was inconsistent with multiple statements made by the same individual in a then-pending wrongful termination lawsuit. The Superior Court granted the defendants’ anti-SLAPP motion, finding that the defamation lawsuit arose from activity within the scope of the statute because it was connected with the ongoing litigation:

the claims at issue fall under the broad umbrella of the anti-SLAPP Act. First, Defendant Gandhi’s statements were made in connection to an issue under review by a judicial body. At the time the statement was made, Plaintiff and Defendant were in the midst of litigation surrounding Plaintiff’s termination Am. Compl. 2. Defendant submitted evidence that Plaintiff and his attorneys had been discussing the lawsuit with various media and press outlets. Def. Exhibit A. Plaintiff does not deny this. In that context, a reasonable person would understand that Defendant’s statement was related to the case under review, as it was a public statement of Defendants’ position in that case.

Similarly in Forras v. Rauf, in granting an anti-SLAPP motion brought in response to a lawsuit alleging that statements made in judicial submissions were false and defamatory, the DC federal court held that “Bailey’s statements about Forras and Klayman were made in Bailey’s Motion to Dismiss the pending action before the Supreme Court of the State of New York, New York County. Therefore, Bailey’s statements qualify as ‘written…statement[s] made . . .[i]n connection with an issue under consideration or review by a . . . judicial body.’ D.C. Code § 16–5501(1)(A).”

Neither the Payne nor the Forras court held that, to be covered by this prong of the statute, a movant needed to show that the statement was related to an issue of public interest. In Vermont, however, this showing is now required. It remains to be seen if this argument will now be advanced in the District.

]]>Earlier this year, in Henne v. City of Yakima, the Washington State Supreme Court held that the City of Yakima could not move under that state’s anti-SLAPP statute where it was the recipient – rather than speaker – of the challenged speech. It is not clear if the outcome would have been different under the DC anti-SLAPP statute.

The facts are as follows:

Henne, a Yakima police officer, filed a lawsuit against his employer, the City of Yakima, alleging that, when several other officers made complaints about his behavior, resulting in an internal investigation, that constituted a hostile work environment. Henne’s suit alleged that Yakima negligently hired, trained and supervised the officers who made the complaints.

The City of Yakima filed an anti-SLAPP motion, arguing that, because the lawsuit was based on speech (the complaints of its officers), Yakima was entitled to dismissal under the state’s anti-SLAPP statute. After the trial court denied Yakima’s anti-SLAPP motion, it appealed under the statute’s expedited appeal provision.

The Washington Supreme Court held that the purpose and language of the state’s anti-SLAPP statute showed that it was intended to protect those who engaged in speech. It held that Yakima could not invoke the statute because it did not utter the challenged speech, but was only the recipient of communications made by others:

Under the statute, Yakima would be free to intervene to “defend or otherwise support” the officers who submitted reports to the city, had Henne sued those officers. Certainly the officers themselves, had they been sued, would have standing to challenge the lawsuit under [the anti-SLAPP statute]. But the statute does not contemplate that the government body to which speech is directed may itself be a “moving party.”

The Henne court noted that its conclusion was at odds with California decisions suggesting that “a defendant government agency may rely on California’s anti-SLAPP statute even where it appears from the facts of the case that the governmental agency received, rather than made, communications,” but held that the result was required because of differences between the two statutes:

the California anti-SLAPP statute states that it “shall be construed broadly.” . . . Our legislature phrased its findings more narrowly than California’s, emphasizing that the protection extends to “participants” – the actors who speak out on public affairs. . . .

Consequently, the Henne court concluded, under the Washington state anti-SLAPP state, “a governmental entity lacks standing to bring an anti-SLAPP motion . . . where the governmental entity has not engaged in the communicative activity on which the suit is based.”

To date, the District of Columbia has successfully invoked the DC anti-SLAPP statute in one case: Payne v. District of Columbia. There, it was clear that the District was being sued for speech allegedly made by its Chief Financial Officer. As such, the Henne question of whether a governmental entity can invoke the anti-SLAPP statute where the lawsuit stems from its receipt – rather than issuance – of the challenged speech, was not addressed in Payne.

DC Code 16-5502(a) provides that “[a] party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest . . .”. The language “arising from an act in furtherance of the right of advocacy on issues of public interest” does not, on its face, appear to require that the movant be the speaker.

However, the Washington anti-SLAPP statute contains similar language, providing that “[a] party may bring a special motion to strike any claim that is based on an action involving public participation and petition. . .”. The Henne court nevertheless concluded that this provision was limited to “a person engaged in some communicative activity” because the statute’s subsections defining what constitutes “public participation and petition” were all directed to the speaker.

As such, it remains an open question whether a recipient of speech could move under the DC anti-SLAPP statute against a suit arising out of that communication. While courts in the District have looked to California in interpreting the DC anti-SLAPP statute, the C4ADS court recently noted the difference in the two jurisdiction’s statutes in departing from California law. (In this regard, it is worth noting that the DC anti-SLAPP statute does not include the “shall be construed broadly” language found in the California statute).

Takeaway: the Henne decision seems shortsighted to me. The purpose of an anti-SLAPP statute is to encourage speech, and provide a means of responding to lawsuits that threaten that speech. An anti-SLAPP statute should be available to all lawsuits that flow from speech – whether the defendants are the speakers, recipients or bystanders. Otherwise a recipient might be less willing to engage in speech, which results in a chilling effect.

In Burke I, the Court of Appeals held that the Superior Court erred in not granting a special motion to quash, brought under the DC Anti-SLAPP statute, in response to an effort to discover the identity of an anonymous Wikipedia editor. The Court of Appeals remanded the case to the Superior Court “with instructions to enter an order granting Zujua’s special motion to quash Ms. Burke’s subpoena” and to consider the movant’s request for attorneys’ fees:

Although Zujua argues on appeal that he was entitled to attorney fees pursuant to D.C. Code § 16-5504(a), the trial court never addressed this motion because Zujua did not prevail below. In the absence of a ruling from the trial court, we do not address this argument on appeal. Zujua may renew his claim for attorney fees once the trial court enters its order quashing the subpoena.

When the case returned to the Superior Court, the movant (Zujua) renewed his request for attorneys’ fees. His motion explained that: (a) he had prevailed on his anti-SLAPP motion despite vigorous opposition by Burke and, in the process, had established new law; (b) the statute allowed for the recovery of attorneys’ fees by a successful movant; (c) the fees/costs were reasonable.

Burke’s opposition brief, unsurprisingly, disagreed with his arguments. First, Burke argued, her case was not a “classic SLAPP,” but rather a legitimate effort to discover the identity of the person who was defaming her, whom she believed was directly connected with a former adversary. Burke revealed that, during the litigation, she offered to dismiss Doe from the case if he submitted an anonymous affidavit confirming that he was not acting as an agent for her former adversary, but that he refused this offer. Her offer, Burke argued, showed that she was not attempting to stifle speech through protracted litigation.

Burke also argued that, because the DC anti-SLAPP statute provided that the Court “may” award fees to a successful movant (the actual language is that “the court may award a moving party who prevails, in whole or in part, on a motion brought under . . . §16-5503 the costs of litigation, including reasonable attorney fees”), that provided the court discretion in whether to award fees.

Finally, Burke argued that Doe’s attorneys litigated the case pro bono as part of an effort to advance “an anti-government, anti-regulatory agenda of certain private, for-profit businesses,” which included publicizing their defense of Doe in a solicitation for donations, and that their successful defense was a sufficient reward, without an award of attorneys’ fees.

The issue of whether Burke’s case was a SLAPP was settled by the Court of Appeals, Doe argued in his reply brief, when it held that the statute applied to the speech. Thus, according to Doe, the Superior Court should not (or could not) revisit Burke’s motivations for filing the action. Doe next argued that, while the statute used the word “may,” that was only to be consistent with other DC statutes that used similar language, but which had been interpreted to require the imposition of attorneys’ fees:

[T]he word “may” was used in place of “shall” in that provision to harmonize it with other D.C. and federal statute that had been construed for years, despite their use of the term “may,” to all-but-require that fees be awarded to eligible parties. Such harmonization was intended to make the same construction applicable to §16-5504, while avoiding the implication, which would have arisen had “shall” been used, that it was no longer a valid construction of those other statutes.

Finally, argued Doe, the fact that its outside counsel litigated the case pro bono, and that the case was in accord with the mission statement of its outside counsel, had no bearing on whether fees should be awarded to Doe, as the moving party.

In May, the Superior Court denied Doe’s motion for fees. The Superior Court agreed with Burke that the case was not a “classic SLAPP,” of the type contemplated by the DC Council, but was instead what Burke “believed to be a meritorious suit to recover for the harm caused by the false statements made via anonymous Wikipedia edits.” In so holding, the Superior Court credited Burke’s argument that, by offering to dismiss the suit if Doe disclaimed any agency status, she was not engaging in protracted, unnecessary litigation.

The Superior Court also held that, under the statute, “attorneys’ fees are not presumed, but instead are discretionary, requiring a weighing of the equities,” and that, weighing the equities, the court believed no fees should be awarded. In so holding, the court explained that:

the case was not a classic SLAPP, as evidenced by Burke’s willingness to dismiss the suit in exchange for a declaration and the fact that all of the important issues (whether the case fell within the scope of the statute, whether Burke was a public figure, the commercial exception, whether the denial of a motion to quash was immediately appealable), were closely decided;

Doe’s counsel “needed no incentive to take on Defendant’s case” because of the organization’s mission statement so that, “in protecting Defendant’s right to anonymous free speech, counsel has already achieved an award by succeeding in its own interest”;

while the case was “precedent-setting,” many attorneys contributed to the jurisprudence, including amici so that “[t]o grant attorneys’ fees in his case based on the significance of the contributions made by Defendant’s counsel alone would necessarily diminish the equally noteworthy contributions of Plaintiff and amici who submitted compelling arguments to the Court of Appeals during this complex litigation.”

Doe has now filed his opening brief in the Court of Appeals. In it, he challenges every aspect of the Superior Court’s decision. According to Doe, a successful moving party on a special motion to quash is presumptively entitled to fees, and such an award is consistent with the statute’s purpose, its legislative history, the structure of the statute and relevant caselaw. Give this, Doe argues, it was an abuse of discretion for the Superior Court to deny his request for fees. Finally, according to Doe, even if the Superior Court had discretion in considering whether to award fees, the Superior Court here relied upon “improper and irrelevant factors” in denying his request for fees.

The ACLU and Reporters’ Committee for Freedom of the Press have filed an amicus brief in support of Doe. In it, they argue that, when the Court of Appeals held that Doe was entitled to dismissal under the anti-SLAPP statute, that decision “necessarily encompassed a holding that Ms. Burke’s lawsuit was a SLAPP within the meaning of that Act” that the Superior Court was prohibited from revisiting on remand. Next, they argue, while the Superior Court held that Burke’s suit was not frivolous or meritless, that analysis was not relevant to whether it was a SLAPP; rather, the only question was whether it was covered by the provisions of the statute, which it was.

The amici also disagree with the Superior Court’s conclusion that an award of fees is discretionary, arguing that conclusion was contradicted by the terms of the statute and its legislative history. They argue that an award of attorneys’ fees to the prevailing party “is also essential to achieving the objectives of the anti-SLAPP statute” because it provides a strong incentive to defendants to stand up for their rights, instead of capitulating early in litigation, provides a basis to attract lawyers, and provides a disincentive to litigants who might be contemplating initiating speech-chilling lawsuits.

Finally, the amicus brief challenges the Superior Court’s rationale for denying an award of fees. It argues that the motivations of Doe’s counsel are irrelevant because the fees go to Doe, as the prevailing party and, in any event, the motivations of outside counsel are always irrelevant in fee determinations. Amici also argue that the contributions of others to the jurisprudence is not a reason to deny an award of fees to Doe’s counsel.

The importance of this appeal cannot be overstated. Fee shifting is a critical component of anti-SLAPP statutes and this case will provide important guidance on how the fee-shifting provision of the DC anti-SLAPP statute works.

]]>The DC Circuit’s Abbas decision, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case, is beginning to have real-world consequences for litigants in the District of Columbia. Since the April 2015 decision, at least two libel cases have been filed in DC federal court. In both cases, the defendants are not able to move under the DC anti-SLAPP statute. And for defendants sued in DC Superior Court – who are able to remove the case to federal court because of diversity jurisdiction – the Abbas decision leaves them with a difficult decision.

Since the DC Circuit issued its Abbas decision, two new libel suits have been filed in DC federal court based upon diversity jurisdiction:

In Rogers v. Secular Coalition for America, Inc., the plaintiff is suing her former employer and others for defamation and related torts arising out of her termination. (Disclosure: I am representing one of the individual defendants in this case).

In Hourani v. PsyberSolutions LLC, the plaintiff (represented by three of the same attorneys who represented the Abbas plaintiff) alleges that the defendants defamed him by suggesting that he was complicit in the murder of a woman.

Because of the Abbas decision, none of the defendants in either case are able to move under the DC anti-SLAPP statute. If the cases were in DC Superior Court, the defendants could make an anti-SLAPP motion (assuming that they could show that the suit was based upon act or acts “in furtherance of the right of advocacy on issues of public interest”).

In an amicus brief filed in the Abbas case, the District of Columbia argued that the DC anti-SLAPP statute should apply in a federal court diversity case because “it would be inequitable to allow the use of a defense to parties subjected to a SLAPP in Superior Court, but deny them the use of that defense in federal court, especially since the choice of forum is, in large part, the province of the plaintiff” and because “if plaintiffs are subject to the heightened burden of proof set forth in the Act if they file their case in local court, but can avoid being subject to those standards if they file in federal court, that result will promote precisely the type of forum-shopping Erie was designed to avoid.” Until Congress passes a federal anti-SLAPP statute, or the DC Circuit or Supreme Court hold that anti-SLAPP statutes apply in federal court, smart plaintiffs will file their libel cases in federal court, if they can, knowing that they are avoiding a possible anti-SLAPP motion.

In the meantime, a defendant who is sued in Superior Court, but who has the ability to remove the case to federal court because of diversity jurisdiction, has a difficult choice. The deadline for removal is 30 days – not enough time to file an anti-SLAPP motion and get a ruling from the Superior Court. So that defendant must decide whether to remain in Superior Court, so that it can file an anti-SLAPP motion, or remove the case to federal court, knowing that it will not be able to file an anti-SLAPP motion.

Leslie Machado,leslie.machado@leclairryan.com]]>http://dcslapplaw.com/2015/08/11/whats-the-impact-of-the-dc-circuits-abbas-decision/feed/01530Its Time for the Supreme Court to Decide if state anti-SLAPP Statutes Apply in Federal Courthttp://dcslapplaw.com/2015/07/20/its-time-for-the-supreme-court-to-decide-if-state-anti-slapp-statutes-apply-in-federal-court/
http://dcslapplaw.com/2015/07/20/its-time-for-the-supreme-court-to-decide-if-state-anti-slapp-statutes-apply-in-federal-court/#respondMon, 20 Jul 2015 16:19:15 +0000http://dcslapplaw.com/?p=1522

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]]>Growing disagreement among federal courts over whether state anti-SLAPP statutes apply in federal court makes clear that the Supreme Court is going to have to resolve this issue.

The DC Circuit created a circuit split when it held, in Abbas v. Foreign Policy Group, that the Federal Rules of Civil Procedure exclusively “establish the standards for granting pre-trial judgment to defendants in cases in federal court” and that, because the District of Columbia’s anti-SLAPP statute dictated a pre-trial procedure that conflicted with those rules, it could not apply in a federal court diversity case. (The parties in the Abbas case have since advised the district court that one, or both, might seek Supreme Court review).

At the time it was issued, Abbas was the only federal appellate decision that rejected the application of a state anti-SLAPP statute in federal court (although several judges in the Ninth Circuit had urged that court to reexamine its prior decisions because they believed that “[v]iewed through Shady Grove’s lens, California’s anti-SLAPP statute conflicts with Federal Rules 12 and 56”).

The Abbas decision was in direct contrast to Godin v. Schencks, where the First Circuit held that the Maine anti-SLAPP statute did not conflict with the Federal Rules of Civil Procedure, and could be applied in federal court, and U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., where the Ninth Circuit held that California’s anti-SLAPP statute did not conflict with Federal Rules 12 and 56.

Now, however, the Seventh Circuit has openly questioned whether the Washington state anti-SLAPP statute could be applied in federal court. In Intercon Solutions, Inc. v. Basel Action Network, et al., it reviewed a district court decision which held that the Washington state anti-SLAPP statute was “incompatible” with the Federal Rules of Civil Procedure and could not be applied in federal court. Although it ultimately affirmed dismissal of the anti-SLAPP motion on an alternative ground (because, in the interim, the Washington State Supreme Court ruled that state’s anti-SLAPP statute was unconstitutional), the Seventh Circuit ominously stated that “[f]ederal rules prevail in federal court” and that “Congress can alter federal pleading standards, . . . but states lack a comparable power.”

And, since the Abbas decision was handed down, another federal district court has concluded that a state anti-SLAPP statute does not apply in federal court. In Unity Healthcare, Inc. v. County of Hennepin, the Minnesota federal district court held that state’s anti-SLAPP statute “collides head-on” with Rule 56 because, among other things, “[t]he restrictive standard for discovery under the anti-SLAPP law is oil to the water of Rule 56’s more permissive standard” and “Minnesota’s anti-SLAPP law turns judges into pre-trial factfinders who must decide factual disputes by assessing credibility and weighing evidence, and they must do so without drawing inferences in favor of the nonmoving party. This standard is anathema to the standard under Rule 56.”

The growing split among the federal courts, together with the fact that Shady Grove (the decision that is fueling the arguments that state anti-SLAPP statutes do not apply in federal court) was an incredibly fractured decision, suggests that the Supreme Court needs to decide this issue sooner rather than later.

]]>Last month, the Washington Supreme Court held that state’s anti-SLAPP statute was unconstitutional because it required trial courts to weigh competing evidence – which was a function expressly reserved for the jury. With the District of Columbia’s Court of Appeals poised to potentially determine the appropriate standard for deciding a motion under the District’s anti-SLAPP statute, the Washington state decision is a potential game changer. Here’s why:

The Washington state anti-SLAPP statute, like the District’s anti-SLAPP statute, uses a burden-shifting framework wherein the moving party has the initial burden of showing, by a preponderance of the evidence, that the claim is based on an action involving public participation and petition. If it meets that burden, the responding party must then establish “by clear and convincing evidence a probability of prevailing on the claim,” in order to avoid dismissal.

In Davis v. Cox, the Washington Supreme Court held that, because this framework required the trial court judge to weigh competing evidence, which was a function reserved for the jury, it was unconstitutional. Although the movants argued that the statute simply imposed a summary judgment-type standard, in which a motion is granted if the undisputed facts show that the movant is entitled to relief as a matter of law, the Davis court held that this interpretation was contradicted by the plain language of the statute:

[t]he anti-SLAPP statute provides a burden of proof concerning whether the evidence crosses a certain threshold of proving a likelihood of prevailing on the claim. . . . But summary judgment does not concern degrees of likelihood or probability. Summary judgment requires a legal certainty: the material facts must be undisputed, and one side wins as a matter of law. If the legislature intended to adopt a summary judgment standard, it could have used the well-known language of CR 56(c). But it did not do so. It instead chose language describing the evidentiary burden to evaluate the “probability of prevailing on the claim.” RCW 4.24.525(4)(b). . . . Thus, RCW 4.24.525(4)(b)’s plain language requires the trial judge to make factual determinations and adjudicate a SLAPP claim.

The movants in Davis also argued that, because the Washington state anti-SLAPP statute was modeled on California’s anti-SLAPP statute, and California’s anti-SLAPP statute has been interpreted to create a summary judgment type standard, the Washington state statute should be similarly construed. The Davis court disagreed, pointing out that the two statutes contain different operative language:

the relevant provisions of the two statutes at issue – their burden of proof standards – are notably different. California’s statute provides that a plaintiff defeats a defendant’s motion by establishing “a probability that the plaintiff will prevail on the claim.” By contrast, our statute expressly ratchets up the plaintiffs evidentiary burden, requiring the plaintiff to establish “by clear and convincing evidence a probability of prevailing on the claim.”

As a result, the Davis court concluded, because Washington state’s anti-SLAPP statute “creates a truncated adjudication of the merits of a plaintiffs claim, including nonfrivolous factual issues, without a trial,” it “invades the jury’s essential role of deciding debatable questions of fact” and “violates the right of trial by jury under article I, section 21 of the Washington Constitution.”

The District of Columbia’s anti-SLAPP statute contains a similar burden shifting framework, first requiring the moving party to make “a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” If it does, the responding party must “demonstrate[] that the claim is likely to succeed on the merits” in order to avoid dismissal.

Several courts interpreting the District’s anti-SLAPP statute have adopted and applied California’s anti-SLAPP standard, which does not allow the trial court to weigh evidence and, instead, requires the responding party to only provide sufficient evidence that, if true, establishes a viable claim. Those courts include:

the DC Superior Court in Washington Travel Clinic v. Kandrac (“a plaintiff is required to ‘demonstrate that the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited’”);

the DC federal district court in Boley v. Atlantic Monthly Group (“If ‘a plaintiff presents an insufficient legal basis for the claims or when no evidence of sufficient substantiality exists to support a judgment for the plaintiff,’ the ‘anti-SLAPP motion should be granted’”);

the DC federal district court in Forras v. Rauf(“a plaintiff ‘must satisfy a standard comparable to that used on a motion for judgment as a matter of law’”);

the DC Superior Court in Mann v. CEI(“Plaintiff must present a sufficient legal basis for his claims”); and

the DC Superior Court in Payne v. District of Columbia(“‘the plaintiff need only have stated and substantiated a legally sufficient claim.’ A plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited’”).

Earlier this year, however, the Superior Court in C4ADS v. Kaalbye rejected an argument that it should “employ a summary judgment standard in assessing the claim of a plaintiff faced with a special motion to dismiss” and instead held that the language of the DC anti-SLAPP statute required the responding party “prove a likelihood of success on the merits, not that its claims pass muster under the standards of Super. Ct. R. Civ. P. 12(b)(6) or Super. Ct. R. Civ. P. 56.”

And the DC Circuit in Abbasstated that “the D.C. Court of Appeals has never interpreted the D.C. Anti-SLAPP Act’s likelihood of success standard to simply mirror the standards imposed by Federal Rules 12 and 56. Put simply, the D.C. Anti-SLAPP Act’s likelihood of success standard is different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56.”

As I wrote after attending the DC Court of Appeals’ argument in Mann v. CEI last November, the panel was focused on the meaning of the phrase “likely to succeed” and what it meant in practice. During oral argument, one of the movant’s counsel argued that the DC Council elected to impose a standard that was more demanding than Rule 12(b)(6) or Rule 56, which might even require the trial judge to weigh disputed facts and make a credibility determination.

Given the Davis decision, and the statement from the DC Circuit in Abbas, it will be interesting to see how the DC Court of Appeals interprets the standard language in the DC anti-SLAPP statute. (The Davis decision, along with the DC Circuit’s Abbas decision, also shows why a federal ant-SLAPP statute is so important).

Accordingly, the “‘Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015” or the ‘‘SPEAK FREE Act of 2015” has been introduced in Congress. Notwithstanding its . . . interesting . . . name (seriously, who has to come up with the words to fit these acronyms?), the statute is a potential game-changer in this developing area of the law. Here are the details:

The proposed federal legislation would apply to any claim that “arises from an oral or written statement or other expression, or conduct in furtherance of such expression, by the person against whom the claim is asserted that was made in connection with an official proceeding or about a matter of public concern.” (This is broader than some state anti-SLAPP statutes, which apply only to speech made in a public or official proceeding).

Like the DC anti-SLAPP statute, the proposed federal anti-SLAPP act establishes a low threshold for the moving party, and a higher burden for the party opposing the motion:

If the party filing a special motion to dismiss a SLAPP suit makes a prima facie showing that the claim at issue arises from an oral or written statement or other expression by the defendant that was made in connection with an official proceeding or about a matter of public concern, then the motion shall be granted and the claim dismissed with prejudice, unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.

(Interestingly, the proposed federal legislation does not define what “likely to succeed on the merits” means – an issue which has bedeviled judges in the District of Columbia (see here and here).

The proposed federal legislation requires an anti-SLAPP motion to be made within 45 days after service, or within 30 days after removal to federal court. It requires the Court to promptly hold a hearing on the motion. And it requires the Court to issue a ruling on the motion within 30 days after it is fully briefed or heard. (These hearing/decision deadlines, which are not in the DC anti-SLAPP statute, are an excellent idea).

The proposed federal legislation stays discovery “unless good cause is shown for specified discovery,” and allows for an immediate appeal “from an order granting or denying in whole or in part a special motion to dismiss.” It provides that a prevailing party shall be entitled to “litigation costs, expert witness fees, and reasonable attorneys fees,” while providing that the Court shall award similar fees and costs if it concludes that a motion was “frivolous or is solely intended to cause unnecessary delay.”

Like the DC anti-SLAPP statue, the proposed federal statute also contemplates a special motion to quash:

A person whose personally identifying information is sought in connection with a claim subject to the procedure described in section 4202(a) may at any time file a motion to quash the order to produce the information. If the party filing a motion to quash makes a prima facie showing that the order is for personally identifying information, then the motion shall be granted and the order to produce the personally identifying information shall be quashed, unless the responding party demonstrates with an evidentiary showing that the claim is likely to succeed on the merits of each and every element of the claim, in which case the motion to quash shall be denied.

Most importantly, given that more than 20 states do not have anti-SLAPP statutes, several other states have narrow statutes and there is now growing uncertainty whether anti-SLAPP statutes apply in federal court, the proposed federal legislation allows an action that involves a claim arising under the statute to be removed to federal court. If the anti-SLAPP motion is denied, the case returns to state court.

Because the District Court’s conclusion that the Complaint was barred by the statute of limitations, and that it failed to state a claim, would be equally applicable under Rule 12(b)(6), the DC Circuit could simply retain the appeal and review it through that procedural lens.

On the other hand, it seems odd that the Circuit would review an appeal when it has rejected the procedural basis for the lower court’s decision. Given that, I suspect that the DC Circuit will remand the case to the District Court so that it can first decide whether dismissal is appropriate under Rule 12(b)(6). (BTW: the remand motion asks the DC Circuit to “order that Appellants’ case proceed” – that is not going to happen!!). While a remand might appear to be a waste of time and resources, given that the District Court is likely to hold that dismissal is still appropriate, albeit under Rule 12(b)(6), I suspect the appellate court would prefer to have the lower court first decide the motion, and then review that decision, if necessary.